United States: Timing Is Everything: The Fidget Spinner Story

Last Updated: August 1 2017
Article by John C. Donch

Co-authored by Jamie K. Unger

Kids are so indulged these days! They get to play with a new toy known as a "fidget spinner," in contrast to previous generations who grew up creating their own, low-quality "fidget spinners" by spinning a ruler around the tip of a pencil. The official fidget spinner, the hottest toy fad of 2017, is a two or three prong gadget with a bearing in the center which allows the contraption to simultaneously balance and spin utilizing one or both hands. Although, as the name suggests, the toy is ideal for those who cannot remain still, all ages and levels of fidgeters are buying the "fidget spinner" as a form of entertainment and/or a concentration aid. No matter what the motivation behind the toy purchase, it seems as though almost everyone is buying one.

These toys are flying off the shelves so fast that retailers and manufacturers are struggling to meet demands.1 In fact, the toy is so popular that Amazon's top 20 best-selling toys list is monopolized by various versions of the fidget spinner. The term "fidget spinner" took off between January and February of this year and was searched more than 25 million times on the internet by the end of April.2 Online sales match the growth of the searched term effectively making the fidget spinner "the fastest growing, high volume product line ever."3 So, many of you must think that whoever invented the fidget spinner hit the proverbial jackpot. Wrong!

The credited inventor, Catherine Hettinger, has not reaped any of the profits from the recently trending fidget spinners.4 Hettinger received a patent on a "Spinning Toy" on January 7, 1997.5 According to Hettinger, she let the patent expire in 2005 because she was unable to afford the $400 maintenance fee.6 Additionally, the toy manufacturer, Hasbro, worked with Hettinger and tested her design, but ultimately decided to forgo production.7 Ironically, Hasbro is now producing the modern day fidget spinner.

Patentees must pay maintenance fees on utility patents and reissue utility patents with application filing dates on or after December 12, 1980.8 Maintenance fees are due at 3.5, 7.5 and 11.5-year increments after the patent issue date.9 If the required maintenance fees are not paid, the patent rights lapse and the patent expires.10

There is some debate over the scope of Hettinger's patent and whether it would have covered the modern day fidget spinners.11 Additionally, even if Hettinger had paid all the required maintenance fees, the patent would have expired by approximately January 2014, prior to the beginning of the new toy craze. However, even if these arguments hold true, had Hettinger paid the maintenance fees, she would have had nine additional years to attempt to sell or license the patent. Who knows, if Hettinger had advertised and marketed her patent during those nine additional years, the fidget spinner may have achieved popularity and profitability earlier than this year. As is always the case, hindsight is 20/20 and sadly, Hettinger is stuck pondering all the "what ifs."

Unfortunately, Hettinger is not the only inventor who potentially missed out on a fortune due to lapsed maintenance fees. GPNE Corp.'s Japanese patent "covering high-speed data transmission" allegedly lapsed in 2013 due to their law firm's failure to pay the maintenance fees.12 Consequently, GPNE purportedly lost millions of dollars' worth of royalties on iPhone and iPad Japan-sales.13

So, what can an inventor do if he or she mistakenly or intentionally lets a patent lapse due to a missed maintenance fee, only to discover later that he or she has inventor's remorse and wants to revive the patent?

There are limited options to reinstate a patent in a case where maintenance fees were intentionally unpaid. If the inventor intentionally misses a maintenance fee but has a change of heart, there is a "grace period" which allows an inventor to pay the maintenance fee up to six months late.14 Additionally, the Director may require payment of a surcharge for paying late.15

On the other hand, there are more options for inventors that unintentionally miss a maintenance fee. Under 35 U.S.C. § 41, "[t]he Director may accept the payment of any maintenance fee . . . after the six month grace period if the delay is shown to the satisfaction of the Director to have been unintentional."16 The petition for a delayed maintenance fee must include (1) the required maintenance fee; (2) the petition fee; and (3) a statement that the delay in payment of the maintenance fee was unintentional. The Director may require additional information where there is a question of whether the delay was unintentional.17 Moreover, the entire delay must have been unintentional.18 Although the petition form does not require details of the unintentional delay and a simple statement that the entire delay beginning when the maintenance fee was due was unintentional usually suffices, "providing an inappropriate statement in a petition" may render the patent unenforceable due to inequitable conduct.19

So what exactly is an "unintentional" delay? "A delay resulting from a deliberately chosen course of action on the part of the [patentee] is not an 'unintentional' delay."20 Unfortunately for Hettinger, being unable to afford the maintenance fee is not considered an unintentional delay; she deliberately let the maintenance fee lapse and the patent expire.

Hettinger, like many inventors, was faced with a tough decision complicated by society's relative inability to predict the future with absolute certainty. When there has consistently been little to no commercial interest in a patent, paying the maintenance fee can become an expensive gamble. Should the patentee continue to have faith and pay the maintenance fee or stop investing in a patent that may never yield a profit? Unfortunately, commercial interest in an invention is unpredictable and could occur years after the patent is issued. As a result, inventors like Hettinger are forced to reckon with immense uncertainty and calculate the costs and benefits of maintaining a patent that could just as easily become the next big thing as it could become a drain on personal and professional finances. With the luxurious comfort of hindsight, people may be quick to say the patent should have been maintained, but the reality is without capital, success or market enthusiasm, many inventors are wise to err on the side of caution and make practical business decisions. Timing, after all, is everything.


1. Donna Fuscaldo, Wal-Mart, Toys R Us Can't Keep Up with the Demand for Fidget Spinners, Investopedia (May 19, 2017), http://www.investopedia.com/news/walmart-toys-r-us-cant-keep-demand-fidget-spinners-wmt-kkr/.

2. Aaron Mendes, Fidget Spinners Go Viral, Become Fastest Growing Product Online Ever, Grows 2000% in 3 Months to Over $25M in Online Sales, 1010Data (May 9, 2017), https://1010data.com/company/blog/fidget-spinners-go-viral-become-fastest-growing-product-online-ever-grows-2000-in-3-months-to-over-25m-in-online-sales/.

3. Id.

4. See, e.g., Jennifer Calfas, The Woman Who Invented the Fidget Spinner Isn't Making Any Money Off Them, Time: Money (May 3, 2017), http://time.com/money/4765380/fidget-spinners-inventor-catherine-hettinger-profits Richard Luscombe, As Fidget Spinner Craze Goes Global, Its Inventor Struggles to Make Ends Meet, The Guardian (May 5, 2017), https://www.theguardian.com/lifeandstyle/2017/may/03/fidget-spinner-inventor-patent-catherine-hettinger; Megan Trimble, Fidget Spinner Inventor Misses Major Payday After Patent on Toy Expires, U.S. News (May 5, 2017), https://www.usnews.com/news/national-news/articles/2017-05-05/fidget-spinner-inventor-misses-major-payday-after-patent-on-toy-expires.

5. Spinning Toy, U.S. Patent No. 5,591,062 (filed May 28, 1993) (issued Jan. 7, 1997).

6. Trimble, supra note 3.

7. Luscombe, supra note 3.

8. Maintain Your Patent, USPTO.gov, , USPTO.gov, https://www.uspto.gov/patents-maintaining-patent/maintain-your-patent (last visited June 1, 2017).

9. 37 C.F.R. § 1.20(e)-(g) (2017) (3.5 year maintenance fees range from $400 to $1600, 7.5 year fees range from $900 to $3,600, and 11.5 year fees range from $1,850 to $7,400. Ranges depend on the size of the entity.).

10. Maintain Your Patent, supra note 7.

11. Joshua Brustein, How the Fidget Spinner Origin Story Spun Out of Control, Bloomberg: Technology (May 11, 2017), https://www.bloomberg.com/news/articles/2017-05-11/how-the-fidget-spinner-origin-story-spun-out-of-control.

12. Y. Peter Kang, Boston Firm Hit with $100M Suit Over Lapsed GPNE Patent, Law360 (Sept. 30, 2015), https://www.law360.com/articles/709564/boston-firm-hit-with-100m-suit-over-lapsed-gpne-patent.

13. Id.

14. 35 U.S.C. § 41(b)(2) (2012).

15. Id.

16. 35 U.S.C. § 41(c)(1) (2012) (changes to the law on Dec. 18, 2013, eliminated unavoidable standard and two-year limit to file petition).

17. Manual of Patent Examining Procedure § 711.03(c); 37 C.F.R. § 1.378 (2017).

18. 37 C.F.R. § 1.378 (2017).

19. 3D Med. Imaging Sys., LLC v. Visage Imaging, Inc., Civ. No. 2:14-CV-267-RWS, 2017 WL 106018, at *1 (N.D. Ga. Jan. 11, 2017).

20. 37 C.F.R. § 1.378 (2017).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.